## Facts

- New Kids on the Block and affiliated entities owned and licensed the “New Kids on the Block” trademark and commercially exploited the name through extensive merchandising and paid 900-number fan services.
- USA Today ran a reader poll asking about the group and inviting calls to a 900 number to vote; the announcement stated any profits from the phone line would go to charity.
- Star magazine ran a similar item tied to coverage of the group, inviting readers to call a 900 number to vote on which member was “sexiest,” charging by the minute.
- The group sued the publishers asserting federal Lanham Act and related state-law claims, alleging the polls diverted revenue from the group’s own phone services and suggested endorsement or sponsorship.
- The district court granted summary judgment for the publishers, and the group appealed.

## Issues

1. Whether use of the “New Kids on the Block” mark to identify the subject of paid reader polls constituted trademark infringement, false designation, or implied endorsement under the Lanham Act.
2. Whether, when a defendant uses a mark to refer to the trademark owner’s product or service rather than to label its own, such use is permissible as nominative fair use.
3. Whether the same referential use supported liability under related state-law theories (unfair competition, misappropriation, false advertising, and interference claims).

## Decision

- The Ninth Circuit affirmed summary judgment for the publishers on all claims.
- The court held the publishers’ use of “New Kids on the Block” was nominative fair use because it was used to identify the subject of news-related polls rather than to brand the publishers’ own goods.
- Applying a three-part nominative fair use test, the court found:
  - The group was not readily identifiable for the poll’s purpose without using the mark.
  - The publishers used only what was reasonably necessary to identify the group (the name and accompanying images in context).
  - The presentations did not suggest sponsorship or endorsement by the group.
- Because the mark use was lawful under nominative fair use and did not imply endorsement, the Lanham Act and parallel state-law claims failed on the same factual basis.

## Legal Principles

- Nominative fair use applies when a defendant uses a trademark to refer to the trademark holder’s own product or service, rather than to describe the defendant’s product.
- A referential use is nominative fair use when:
  - The product or service is not readily identifiable without using the mark.
  - The defendant uses no more of the mark than reasonably necessary for identification.
  - The defendant does nothing, in conjunction with the mark, that suggests sponsorship or endorsement by the trademark holder.
- Likelihood-of-confusion analysis is limited where the use is purely referential and necessary to identify the subject; trademark law does not bar truthful identification absent conduct suggesting source, sponsorship, or endorsement.

## Conclusion

The court held that newspapers could use the band’s trademarked name to identify the band as the subject of paid reader polls without liability because the use was necessary, limited, and did not imply endorsement, establishing the Ninth Circuit’s nominative fair use framework.


New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302 (9th Cir. 1992)